Thursday, December 24, 2015

When interpreting a collective bargaining agreement the arbitrator may not rewrite a contract provision by adding a new clause based upon a past practice


When interpreting a collective bargaining agreement the arbitrator may not rewrite a contract provision by adding a new clause based upon a past practice
Matter of City of Rochester (Rochester Police Locust Club), 2015 NY Slip Op 08580, Appellate Division, Fourth Department

Supreme Court granted the City of Rochester’s [Rochester] CPLR Article 75 application to vacate an arbitration award in favor of the Rochester Police Locust Club [Union]. The Union appealed but the Appellate Division affirmed the Supreme Court’s ruling.

The genesis of the grievance leading to the arbitration was a determination by Rochester denying a police sergeant's request for a vehicle to use on the job and take home. The Unionfiled on behalf of the sergeant and ultimately the arbitrator issued an award directing Rochester to provide the sergeant with a vehicle. The arbitrator ruled that the arbitrator Rochestermust provide the sergeant with a take-home vehicle “based solely on the [Rochester’s] past practice, which included providing such a vehicle to the two predecessors in his position.”

In sustaining the Supreme Court’s decision vacating the arbitration award the Appellate Division noted that the provision in the collective bargaining agreement governing arbitration provided, in relevant part, that "[t]he authority of the arbitrator shall be limited to matters of interpretation or application of the express provisions of this Agreement and the arbitrator shall have no power or authority to alter, add to or subtract from or otherwise modify the terms of this Agreement as written."

Citing Buffalo Teachers Federation v Board of Education, 50 AD3 1503, the court observed that "It is well settled that an arbitration award may be vacated if it exceeds a specifically enumerated limitation on an arbitrator's power [and that] an arbitrator exceeds his or her authority by granting a benefit not recognized under a governing collective bargaining agreement."

In this instance the Appellate Division said that the controlling provision was contained in a memorandum of agreement between Rochesterand the Union. This provision required Rochester to provide a vehicle to police "investigator[s] who are assigned to the Major Crimes Unit."

There was no question that the sergeant who had requested the vehicle was not an investigator nor was he assigned to the Major Crimes Unit. Notwithstanding this, the arbitrator concluded that Rochester must provide him with a take-home vehicle based solely on Rochester’s past practice, which included providing such a vehicle to the two predecessors in the Sergeant’s position.

This, said the court, was error explaining that although past practices may be considered by an arbitrator when interpreting a specific contractual provision, an arbitrator may not rewrite a contract by adding a new clause based upon a past practice.

The decision is posted on the Internet at:

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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